Tuesday, June 13, 2006

The Irish Independent has a story about wrongful access to mobile phone voice mailboxes. Although the story claims that access to voicemail messages is "a crime under the Postal and Telecommunications Act 1983", it's not clear if that is true. Section 98(1) of the 1983 Act provides:

A person who-
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by [a person deemed to be authorised under the Authorisation Regulations] or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence.

The reference to telecommunications messages being transmitted suggests that stored messages, such as voicemail messages, may not be protected by section 98.

There are two counter arguments. First, it might be said that such messages are "being transmitted" until they are first listened to. This is an incomplete solution, however, at best it would only protect new messages, with those already listened to having no protection.

Second, it could be argued that the act of dialing into the voice mail itself causes the message to be transmitted, and the interception takes place where you listen to such a message. This is given support by the very wide definition of "interception" contained in section 98:

In this section, "interception" means listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message ...

Again, though, this is an incomplete solution. If we adopt this argument, then the mobile phone company employee who listens to the message at work would not be guilty of an offence, as the (locally held) message would not be transmitted.

This article highlights, then, one problem with Irish interception law. Whatever view we take, it seems that stored messages such as voicemail do not enjoy adequate protection - and it is long past time that the 1983 Act was updated to take account of technological changes in the meantime.